Date: 19991203
Docket: IMM-1491-99
BETWEEN:
VICTOR ANTONIO REYES AHUMADA
Applicant
AND:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for an order setting aside the decision of the Convention Refugee Determination Division dated March 9, 1999, which held that the applicant is not a Convention Refugee.
[2] The applicant, Victor Antonio Reyes Ahumada, was born on August 31, 1970, and is a citizen of Chile. He came to Canada and made a claim for Convention Refugee status on the basis of a well-founded fear of persecution in Honduras because of his political opinion.
[3] The hearing of the applicant's refugee claim occurred on November 17, 1998, and January 7, 1999. The hearing was heard by a two-member panel of the Convention Refugee Determination Division of the Immigration and Refugee Board. The panel members were Kim Workun and Ian Clague.
[4] Prior to the second day of the hearing, applicant's counsel became aware that Ms. Workun was employed by the Department of Citizenship and Immigration as an Appeals Officer, and had taken a leave of absence to assume a position as a member of the Immigration and Refugee Board. On January 7, 1999, Mr. Ahumada's counsel made an application seeking that Ms. Workun recuse herself from sitting as a member of the panel hearing the claim and that a freshly constituted two member panel be appointed for the purpose of conducting a new hearing. The application was denied and Ms. Workun continued to sit as a member of the panel which conducted the hearing and ultimately rendered the impugned decision. Subsequent to the hearing, the Department of Citizenship and Immigration acknowledged that Ms. Workun continues to be its employee while she is sitting as a member of the Convention Refugee Determination Division.
[5] The applicant now seeks to have the board's decision set aside on the grounds that the tribunal breached the rules of natural justice due to a reasonable apprehension of bias based on the fact that Ms. Workun continues to hold the position of Appeals Officer with the Vancouver Enforcement Branch of the Department while at the same time sitting as a member of the Convention Refugee Determination Division.
[6] At the hearing of this matter I granted the application. The following are my reasons for doing so.
[7] The principles of natural justice by which tribunals such as the Convention Refugee Determination Division are bound have two basic underlying objectives; first, that no individual shall be adversely affected by a decision without the benefit of a fair hearing and second, that any decision which does affect an individual must be made by a decision-maker who is impartial and not biased. The right to be heard by an impartial and unbiased decision-maker is an important aspect of the audi alteram partem rule.
[8] In order for a hearing to be considered fair, there cannot exist even the appearance of prejudice to the right of a claimant to make full presentation before an unbiased board. A claimant is entitled to have his case decided by a panel whose collective mind is free from bias and which is independent and impartial. It is well established that the rationale of the rule against bias is to ensure that justice must not only be done, but must manifestly and undoubtedly be seen to be done.
[9] The test which has developed is that of a "reasonable likelihood or suspicion of bias", the emphasis being not on the court's perception of what is bias, but rather on the opinion of the reasonable man. This test has been stated by the Supreme Court of Canada in Committee for Justice & Liberty v. National Energy Board (1978), 68 D.L.R. (3d) 716 at p. 735 as "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?" The objective of the test is to ensure public confidence in the impartiality of adjudicative agencies such as the Convention Refugee Determination Division. The mere suggestion that a claimant has been denied his basic right to a fair hearing is justification for an order setting aside the tribunal's decision and returning the matter for rehearing and redetermination.
[10] There is no established jurisprudence or academic treatises which provide an exhaustive list of the types of activities or behaviours which will be seen as contravening the rule against bias. For the most part, each case must be decided on the basis of its own unique circumstances and its own merit.
[11] Although a tribunal's decision will rarely be set aside on grounds of bias, I am satisfied that it is the appropriate and prudent course to follow in the present case. We have here an individual, Ms. Workun, who is employed by the Department of Citizenship and Immigration as an Appeals Officer. One of the functions of an Appeals Officer is to represent the Minister in quasi-judicial proceedings before the Convention Refugee Determination Division, including hearings to determine refugee claims. While retaining this employment status, albeit on a leave of absence, Ms. Workun is at the same time sitting as a member on the very tribunal before which she appears on behalf of the Minister. In my view, those facts are capable of leading a reasonable person to have serious doubts as to the impartiality of the decision-maker and the decision-making process. The circumstances here could well be seen by an ordinary person as creating a situation of impartiality and bias.
[12] For these reasons, the application is granted. The decision of the Convention Refugee Determination Division is set aside and the matter is returned for rehearing and redetermination by a newly constituted panel.
[13] At the conclusion of the hearing I requested that the parties make submissions with respect to a certified question. I am satisfied that the facts here pose a serious question of general importance given that Ms. Workun continues to perform her duties of hearing and deciding refugee claims as a member of the Convention Refugee Determination Division, while at the same time maintaining her position with the Department as an Appeals Officer. Although the applicant in the present case became aware of this fact it is not only conceivable, but quite likely, that other claimants are having their refugee claims determined by Ms. Workun without knowledge of these circumstances.
[14] Furthermore, I agree with the applicant that the question to be posed here should specify the Branch of the Department of Citizenship and Immigration in question and the fact that Ms. Workun is an immigration officer. There are a number of employees with the Department whose appropriateness as appointees to the Convention Refugee Determination Division was not addressed at the hearing before me and no evidence or argument on the issue of bias with respect to these individuals was submitted. Accordingly, the question is as follows:
| Would a reasonable apprehension of bias be created by the fact that a member of the Convention Refugee Determination Division of the Immigration and Refugee Board is an employee on leave of absence from a position as an immigration officer in the Enforcement Branch of the Department of Citizenship and Immigration? |
JUDGE
OTTAWA, Ontario
December 3, 1999